[Federal Register Volume 73, Number 56 (Friday, March 21, 2008)]
[Notices]
[Pages 15225-15228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-5674]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57502; File No. SR-Amex-2008-18]


Self-Regulatory Organizations; American Stock Exchange, LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change to 
Create a Delta Hedging Exemption From Equity Options Position Limits

March 14, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on March 4, 2008, the American Stock Exchange, LLC (``Amex'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I and 
II below, which Items have been substantially prepared by Amex. The 
Exchange has filed the proposal as a ``non-controversial'' rule change 
pursuant to Section 19(b)(3)(A) of the Act \3\ and Rule 19b-4(f)(6) 
thereunder,\4\ which renders it effective upon filing with the 
Commission. The Commission is publishing this notice to solicit 
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Amex Rule 904 to establish a delta 
hedge exemption from equity options position limits. The text of the 
proposed rule change is available at Amex, the Commission's Public 
Reference Room, and www.amex.com.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, Amex included statements 
concerning the purpose of and basis for the

[[Page 15226]]

proposed rule change and discussed any comments it received on the 
proposed rule change. The text of these statements may be examined at 
the places specified in Item IV below. Amex has prepared summaries, set 
forth in Sections A, B, and C below, of the most significant aspects of 
such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    All options contracts listed and traded on the Exchange are subject 
to position and exercise limits as set forth in Amex Rules 904 and 905. 
Position limits restrict the number of options contracts that an 
investor, or a group of investors acting in concert, may own or control 
in one particular option class or the security or securities that 
underlie that option class. Similarly, exercise limits prohibit the 
exercise of more than a specified number of contracts on a particular 
instrument within five business days. The Exchange does provide various 
hedge exemptions to permit certain ``hedged'' positions greater 
position limits than the applicable standard position limit.\5\
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    \5\ See Commentary .09 to Amex Rule 904.
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    Over the past several years, the Exchange as well as the other 
self-regulatory organizations (``SROs'') have increased in absolute 
terms the size of the options position and exercise limits as well as 
the size and scope of available exemptions for ``hedged'' positions.\6\ 
The exemptions for hedged positions generally require a one-to-one 
hedge (i.e., one stock option contract must be hedged by the number of 
shares covered by the options contract, typically 100 shares). In 
practice, however, many firms do not hedge their options positions in 
this way. Rather, these firms engage in what is known as ``delta 
hedging,'' which varies the number of shares of the underlying security 
used to hedge an options position based upon the relative sensitivity 
of the value of the option contract to a change in the price of the 
underlying security.\7\ The Amex believes that delta hedging is widely 
accepted for net capital and risk management purposes.
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    \6\ See Securities Exchange Act Release Nos. 51316 (March 3, 
2005), 70 FR 12251 (March 11, 2005) (SR-Amex-2005-029); 45312 
(January 18, 2002), 67 FR 3752 (January 25, 2002) (SR-Amex-2001-42); 
and 40875 (December 31, 1998), 64 FR 1842 (January 12, 1999) (SR-
Amex-98-22). See also Securities Exchange Act Release No. 45650 
(March 26, 2002), 67 FR 15638 (April 2, 2002) (SR-Amex-2001-72).
    \7\ For example, an option with a delta of .5 will move $0.50 
for every $1.00 move in the underlying stock.
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    In 2002, the Commission approved amendments to Amex Rule 904 
providing an expansion to the hedging strategies exempt from the 
standard position and exercise limits.\8\ In addition, in 2004, the 
Commission approved a proposal of the National Association of 
Securities Dealers, Inc. (``NASD'') providing for a delta hedging 
exemption from stock options position and exercise limits for positions 
held by affiliates of NASD members approved by the Commission as ``OTC 
derivatives dealers.'' \9\ At that time, the Commission reiterated its 
``support for recognizing options positions hedged on a delta neutral 
basis as properly exempted from position limits.'' \10\
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    \8\ See supra note 6.
    \9\ See Securities Exchange Act Release No. 50748 (November 29, 
2004), 69 FR 70485 (December 6, 2004) (SR-NASD-2004-153).
    \10\ Id. at 70486.
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Proposed Delta Neutral-Based Hedge Exemption
    The Exchange proposes to adopt a new exemption from equity options 
position and exercise limits for positions held by Amex members and 
certain of their affiliates that are ``delta neutral'' \11\ under a 
``permitted pricing model'' (as defined below), subject to certain 
conditions (``Exemption''). The proposed Exemption would only apply to 
equity options, i.e. stock options and options on Exchange Traded Fund 
Shares. Any equity option position that is not ``delta neutral'' would 
be subject to position and exercise limits, subject to the availability 
of other exemptions. Only the ``options contract equivalent of the net 
delta'' \12\ of a hedged options position would be subject to the 
appropriate position limits.
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    \11\ ``Delta neutral'' is defined in proposed Commentary .10(a) 
to Rule 904 as an equity options position that has been fully 
hedged, in accordance with a ``Permitted Pricing Model,'' by a 
position in the underlying security or one or more instruments 
relating to the underlying security, for the purpose of offsetting 
the risk that the value of the option position will change in 
response to incremental changes in the price of the security 
underlying the option position.
    \12\ ``Net delta'' is defined in proposed Commentary .10(b) to 
Rule 904 to mean ``the number of shares (either long or short) 
required to offset the risk that the value of an equity options 
position will change with incremental changes in the price of the 
security underlying the options position, as determined in 
accordance with a Permitted Pricing Model.'' ``Options Contract 
Equivalent of the Net Delta'' is defined in proposed Commentary 
.10(c) to Rule 904 to mean the net delta divided by the number of 
shares underlying the options contract.
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    Only financial instruments relating to the security underlying an 
equity options position could be included in any determination of an 
equity options position's net delta or whether the options position is 
delta neutral. In addition, members could not use the same equity or 
other financial instrument position in connection with more than one 
hedge exemption. Accordingly, a stock position used as part of a delta 
hedging strategy could not also serve as the basis for any other equity 
hedge exemption.
Permitted Pricing Model
    Under this proposal, the calculation of the delta for any equity 
option position, and the determination of whether a particular equity 
option position is delta neutral, is required to be made using a 
``Permitted Pricing Model.'' A ``Permitted Pricing Model'' is defined 
in proposed Commentary .10(e) to Rule 904 to mean the pricing model 
maintained and operated by The Options Clearing Corporation (``OCC'') 
and the pricing models used by: (1) A member or its affiliate subject 
to consolidated supervision by the Commission pursuant to Appendix E of 
Rule 15c3-1 under the Act; \13\ (2) a financial holding company 
(``FHC'') or a company treated as an FHC under the Bank Holding Company 
Act of 1956, or its affiliate subject to consolidated holding company 
group supervision; \14\ (3) a Commission-registered OTC

[[Page 15227]]

derivatives dealer; \15\ and (4) a national bank under the National 
Bank Act. \16\
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    \13\ Use of such pricing model would be required to be 
consistent with the requirements of Appendices E or G, as 
applicable, to Rules 15c3-1 and 15c3-4 under the Act in connection 
with the calculation of risk-based deductions from capital or 
capital allowances for market risk thereunder. See proposed 
Commentary .10(e)(2) to Rule 904.
    \14\ An FHC's affiliate that is part of the FHC's consolidated 
supervised holding company group would be eligible to use this part 
of the Exemption. An FHC's (or an affiliate's) use of a proprietary 
model would have to be consistent with either: (i) The requirements 
of the Board of Governors of the Federal Reserve System, as amended 
from time to time, in connection with the calculation of risk-based 
adjustments to capital for market risk under capital requirements of 
the Board of Governors of the Federal Reserve System; or (ii) the 
standards published by the Basel Committee on Banking Supervision, 
as amended from time to time and as implemented by such company's 
principal regulator, in connection with the calculation of risk-
based deductions or adjustments to or allowances for the market risk 
capital requirements of such principal regulator applicable to such 
company--where ``principal regulator'' means a member of the Basel 
Committee on Banking Supervision that is the home country 
consolidated supervisor of such company. See proposed Commentary 
.10(e)(3) to Rule 904. It is important to note that the U.S. 
activities of entities subject to the Basel standards are overseen 
by the Federal Reserve Board, and the Exchange would be relying upon 
that oversight in extending exemptive relief to such entities.
    \15\ An OTC derivative dealer's use of a proprietary model would 
be required to be consistent with the requirements of Appendix F to 
Rule 15c3-1 and Rule 15c3-4 under the 1934 Act in connection with 
the calculation of risk-based deductions from capital for market 
risk thereunder. Only an OTC derivatives dealer and no other 
affiliated entity (including a member) would be able to rely upon 
this particular part of the Exemption. See proposed Commentary 
.10(e)(4) to Rule 904.
    \16\ The use of a proprietary model by a national bank would be 
required to be consistent with the requirements of the Office of the 
Comptroller of the Currency, as amended from time to time, in 
connection with the calculation of risk-based adjustments to capital 
for market risk under capital requirements of the Office of the 
Comptroller of the Currency. An affiliate of a national bank 
(including an Exchange member) would not be permitted to rely on 
this part of the Exemption. See proposed Commentary .10(e)(5) to 
Rule 904.
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Aggregation of Accounts
    Members and non-member affiliates relying on the Exemption would be 
required to ensure that the Permitted Pricing Model applies to all 
positions in, or relating to, the security underlying the relevant 
options position that are owned or controlled by the member or its 
affiliates.
    However, the net delta of an options position held by an entity 
entitled to rely on this Exemption, or by a separate and distinct 
trading unit of such entity, could be calculated without regard to 
positions in or relating to the security underlying the option held by 
an affiliated entity or by another trading unit within the same entity, 
provided that: (1) the entity demonstrates to the Exchange's 
satisfaction that no control relationship, as defined in Commentary .08 
to Rule 904, exists between such affiliates or trading units; and (2) 
the entity has provided the Exchange written notice in advance that it 
intends to be considered separate and distinct from any affiliate, or, 
as applicable, which trading units within the entity are to be 
considered separate and distinct from each other for purposes of this 
Exemption.\17\
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    \17\ See proposed Commentary .10(f) to Rule 904.
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    The Exchange has set forth in the proposed Information Circular the 
conditions under which it will deem no control relationship to exist 
between entities and between separate and distinct trading units within 
the same entity.
    Any member or non-member affiliate relying on the Exemption would 
be required to designate, by prior written notice to the Exchange, each 
trading unit or entity whose options positions are required by Exchange 
rules to be aggregated with the options positions of such member or 
non-member affiliate relying on the Exemption for purposes of 
compliance with Exchange position or exercise limits.
Obligations of Members and Affiliates
    Any member relying on the Exemption would be required to provide a 
written certification to the Exchange stating that it is using a 
Permitted Pricing Model as defined in proposed Commentary .10(e) to 
Rule 904 for purposes of the Exemption. In addition, by such reliance, 
such member or member organization would authorize any other person 
carrying for such member or member organization an account, including, 
or with whom such member has entered into, a position in or relating to 
a security underlying the relevant option position to provide to the 
Exchange or OCC such information regarding such account or position as 
the Exchange or OCC may request as part of the Exchange's confirmation 
or verification of the accuracy of any net delta calculation under this 
Exemption.\18\
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    \18\ See proposed Commentary .10(g) to Rule 904.
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    The options positions of a non-member affiliate relying on the 
Exemption would have to be carried by a member with whom it is 
affiliated. A member carrying an account that includes an equity option 
position for a non-member affiliate that intends to rely on the 
Exemption would be required to obtain from such non-member affiliate a 
written certification sufficient that it is using a Permitted Pricing 
Model as defined in the Rule for purposes of the Exemption.\19\
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    \19\ In addition, the member or member organization would be 
required to obtain from such non-member affiliate a written 
statement confirming that such non-member affiliate: (a) Is relying 
on the Exemption; (b) will use only a Permitted Pricing Model for 
purposes of calculating the net delta of the option positions for 
purposes of the Exemption; (c) will promptly notify the member or 
member organization if it ceases to rely on the Exemption; (d) 
authorizes the member or member organization to provide to the 
Exchange or the OCC such information regarding positions of the non-
member affiliate as the Exchange or OCC may request as part of the 
Exchange's confirmation or verification of the accuracy of any ``net 
delta'' calculation under the Exemption; and (e) if the non-member 
affiliate is using the OCC Model, has duly executed and delivered to 
the Exchange such documents as the Exchange may require to be 
executed and delivered to the Exchange as a condition to reliance on 
the Exemption. See proposed Commentary .10(g)(3) to Rule 904.
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Position Reporting
    Under proposed Commentary .10(h) to Rule 904, each member or member 
organization relying on the Exemption would be required to report, in 
accordance with Rule 906,\20\ (i) all equity option positions 
(including those that are delta neutral) that are reportable 
thereunder, and (ii) on its own behalf or on behalf of a designated 
aggregation unit pursuant to proposed Commentary .10(f) to Rule 904, 
for each such account that holds an equity option position subject to 
the Exemption in excess of the levels specified in Rule 904, the net 
delta and the options contract equivalent of the net delta of such 
position.
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    \20\ Amex Rule 906 requires, among other things, that members 
and member organizations report to the Exchange aggregate long or 
short positions on the same side of the market of 200 or more 
contracts of any single class of options contracts dealt in on the 
Exchange.
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    The Exchange and other SROs are working on modifying the Large 
Options Position Reporting system and/or the OCC reports to allow a 
member to indicate that an equity options position is being delta 
hedged.
Records
    Under proposed Commentary .10(i) to Rule 904, each member and 
member organization relying on the Exemption would be required to (i) 
retain, and would be required to undertake reasonable efforts to ensure 
that any non-member affiliate of the member or member organization 
relying on the Exemption retains, a list of the options, securities and 
other instruments underlying each options position net delta 
calculation reported to the Exchange hereunder, and (ii) produce such 
information to the Exchange upon request.\21\
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    \21\ A member would be authorized to report position information 
of its non-member affiliate pursuant to the written statement 
required under proposed Commentary .10(g)(3)(ii)(d).
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Reliance on Federal Oversight
    As provided under proposed Commentary .10(e) to Rule 904, a 
Permitted Pricing Model includes proprietary pricing models used by 
members or member organizations and affiliates that have been approved 
by the Commission, the Federal Reserve Board or another federal 
financial regulator. In adopting the proposed Exemption, the Exchange 
would be relying on the rigorous approval processes and ongoing 
oversight of a federal financial regulator. The Exchange notes that it 
would not be under any obligation to verify whether a member or member 
organization's use of a proprietary pricing model is appropriate or 
yielding accurate results.
    The Exchange will announce the operative date of the proposed rule 
change in an Information Circular to be distributed no later than sixty 
days following the notice of filing in the Federal Register. The 
operative date shall be no later than thirty days following 
distribution of the

[[Page 15228]]

Information Circular announcing the notice of filing in the Federal 
Register, or such later date as may be necessary to ensure completion 
of the required technology changes by the OCC and the Securities 
Industry Automation Corporation.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with 
Section 6(b) of the Act,\22\ in general, and furthers the objectives of 
Section 6(b)(5) of the Act,\23\ in particular, in that it is designed 
to promote just and equitable principles of trade, to prevent 
fraudulent and manipulative acts and practices, to remove impediments 
to and perfect the mechanism of a free and open market and a national 
market system, and, in general, to protect investors and the public 
interest. The Exchange believes the proposed delta neutral-based hedge 
exemption from equity options position and exercise limits is 
appropriate in that it is based on a widely accepted risk management 
method used in options trading. In addition, the Commission has 
previously stated its support for recognizing options positions hedged 
on a delta neutral basis as properly exempted from position limits.\24\
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    \22\ 15 U.S.C. 78f(b).
    \23\ 15 U.S.C. 78f(b)(5).
    \24\ See Securities Exchange Act Release No. 40594 (October 23, 
1998), 63 FR 59362, 59380 (November 3, 1998) (S7-30-97) (adopting 
rules relating to OTC Derivatives Dealers).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants or Others

    No written comments were either solicited or received with respect 
to the proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Because the foregoing rule change does not: (1) Significantly 
affect the protection of investors or the public interest; (2) impose 
any significant burden on competition; and (3) become operative for 30 
days after the date of this filing, or such shorter time as the 
Commission may designate, it has become effective pursuant to Section 
19(b)(3)(A) of the Act \25\ and Rule 19b-4(f)(6) thereunder. \26\
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    \25\ 15 U.S.C. 78s(b)(3)(A).
    \26\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under 19b-4(f)(6) normally may not 
become operative prior to 30 days after the date of filing.\27\ 
However, Rule 19b-4(f)(6)(iii) \28\ permits the Commission to designate 
a shorter time if such action is consistent with the protection of 
investors and the public interest. The Exchange has requested that the 
Commission waive the 30-day operative delay. The Commission believes 
that waiving the 30-day operative delay is consistent with the 
protection of investors and the public interest because such waiver 
would allow the Exchange to implement the delta hedging exemption from 
equity options position limits without needless delay. The Commission 
notes that it recently approved a substantially similar proposal filed 
by the Chicago Board Options Exchange, Incorporated.\29\ The Commission 
believes that Amex's proposal to create a delta hedging exemption from 
equity options position limits raises no new issues. For these reasons, 
the Commission designates the proposed rule change to be operative upon 
filing with the Commission.\30\
    At any time within 60 days of the filing of such proposed rule 
change the Commission may summarily abrogate such rule change if it 
appears to the Commission that such action is necessary or appropriate 
in the public interest, for the protection of investors or otherwise in 
furtherance of the purposes of the Act.
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    \27\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-
4(f)(6)(iii) requires that a self-regulatory organization submit to 
the Commission written notice of its intent to file the proposed 
rule change, along with a brief description and text of the proposed 
rule change, at least five business days prior to the date of filing 
of the proposed rule change, or such shorter time as designated by 
the Commission. The Exchange has satisfied the five-day pre-filing 
notice requirement.
    \28\ Id.
    \29\ See Securities Exchange Act Release No. 56970 (December 14, 
2007), 72 FR 72428 (December 20, 2007) (SR-CBOE-2007-99).
    \30\ For the purposes only of waiving the 30-day operative 
delay, the Commission has considered the proposed rule's impact on 
efficiency, competition, and capital formation. See 15 U.S.C. 
78c(f).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to [email protected]. Please include 
File Number SR-Amex-2008-18 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-Amex-2008-18. This file 
number should be included on the subject line if e-mail is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for inspection and 
copying in the Commission's Public Reference Room, 100 F Street, NE., 
Washington, DC 20549, on official business days between the hours of 10 
am and 3 pm. Copies of the filing also will be available for inspection 
and copying at the principal office of Amex. All comments received will 
be posted without change; the Commission does not edit personal 
identifying information from submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-Amex-2008-18 and should be submitted on 
or before April 11, 2008.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\31\
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    \31\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E8-5674 Filed 3-20-08; 8:45 am]
BILLING CODE 8011-01-P